General terms and conditons for the use of the travel service platform by Triplemind.com

§ 1General Regulations
1.1 The company Triplemind GmbH, Berliner Str. 2, 63065 Offenbach am Main, HRB B43729, HR Frankfurt am Main ( hereinafter referred to as supplier), offers accommodation operator and other travel services suppliers (hereinafter referred to as user) within the limits of the contract of services the possibility to use permanently its electronic intermediation of accommodations on the provided online-marketplaces according to the specifications of the terms and conditions.
1.2These terms and conditions exclusively contain the conditions that are applicable to the conditions that were agreed between the supplier and the user for the supplier offered services. Agreements which do not comply with these terms and conditions are only applicable if the supplier confirms them in written form. This is also necessary when the supplier knows the user´s conflicting or deviant terms and conditions but performs his services without any reservation. With the admission accordant to § 3 the user accepts the terms and conditions as definitive.
1.2.1Changes of these terms and conditions will be communicated to the user by the supplier in written form, per fax or per e-mail. If the user does not object such changes within 4 weeks after the message has come to his attention the changes will be considered as agreed. In case the terms and conditions have been changed the user will be informed separately about his right of objection and the legal consequences of a silence.
§ 2Platform operators´ services
2.1The marketplace is a platform for offerers of services according to the branch of tourism. The marketplace has a integrated, automatic system that transmits information in order to simplify the communication between user and the end customer as well as wide functionalities to administrate and control the particular contracts.
2.2The offerers´ services include amongst others
2.2.1preparation of the possibility to use the marketplace after the admission accordant to § 3;
2.2.2enabling of presentations and contract conclusions on the marketplace through an announcement that has been initiated by the user according to § 4;
2.2.3Creation of the possibility of information or communication between the users and the end customers;
2.2.4Advisory service and assistance service for the user after separate agreement with the supplier.
2.2.5The supplier guarantees the server´s availability of 95 % annual mean. Hereof excluded are times when the server is not available through the internet because of a technical or an other problem that is out of the supplier's sphere of influence (act of God, third party default). The supplier is allowed to restrict the services if security of the netserver operator demands the maintenance of the web integrity in particular to avoid grave breakdowns of the wed, the used software or the stored data.
§ 3Admission and access to the marketplace
3.1Precondition for the use of the marketplace is the supplier´s admission. The marketplace is only available for such accommodation operators and other suppliers of travel services who perform their services more than occasionally or just do it privately (contractor according to § 14 BGB) and who are totally contractually capable. A claim to admission or use of the marketplace does not exist.
3.2The user has to name his company data when he applies for the admission. The admission application will be accepted per affirmation answer, per e-mail or per fax. By acceptance will be concluded a service contract between the supplier and the user for an indefinite time which accords to these terms and conditions.
3.3If the users´ data change after the registration he is obligated to adjust the statements immediately for the supplier.
3.4The user is responsible for the truth and the completeness concerning the statements he did during the admission application according to § 3.2 and towards other marketplace users. He is obligated to inform immediately the supplier about all changes in the future.
3.5The supplier is authorized to withdraw the admission to a user or to block the access if there is probable cause that he broke the terms of use. The user can avert these measures if he is able to proof qualifiedly the opposite and bears the costs.
3.6All logins are individualized and may only be used by the authorized user. The user is obligated to keep the login and the password a secret and to keep it safe in an accurate way from a third party´s access and to prevent fraudulant use and loss. The user has to communicate immediately the supplier if there is suspicion that a third party is abusing it. As soon as the supplier is informed about the unauthorized use he will block the unauthorized access. The supplier reserves the right to change the user´s login and password; in such a case the supplier will communicate it immediately to the user. The user is responsible for the costs which were caused by a third party who used the user´s access identification. He is liable towards the supplier if he does not keep the duties and liberates him from costs or third party´s claims, which were caused by violating the asforsaid duties.
§ 4Prices, payment practices
4.1If the supplier´s performance is based on an offer with costs the compensation that has to be paid by the user depends on the current price condition which are visible on the marketplace.
4.2The supplier is allowed to arise the compensation once a quarter. The user´s acceptance is necessary. The acceptance is seen as given if the user does not object the arise of price in the space of 4 weeks after receiving the notice of change. The supplier assumes responsibility to inform the user with his notice of change about the consequences of refraiming an objection.
4.3The amount invoice is payable in the space of 10 man-days after receiving the bill. Concerning the consequences of default the legal rules are applicable.
4.4Unless otherwise agreed are the prices always net prices to which will be add the legal taxes that are payable the day the bill is received.
4.5The ordering party can only charge up a claim against the supplier´s claim if it has not been disputed or it already has been declared legal.
4.6The cash discount can only been taken if it has been a separate written agreement.
4.7The user agrees with the storage of the billing data for later documentation and/or for the legal due of saving.
§ 5Contract conclusion on the marketplace
5.1User have the possibility to offer services to the end customers. These offers are not legally binding in terms of § 145 BGB but only an invitation to make an offer (invitatio ad offerendum) unless otherwise agreed.
5.2ontract conclusions about the user´s offert services happen only in user/end customer relation without the supplier´s participation.
5.3The transaction of the contracts that were concluded on the marketplace is only business between the particular user and the end customer. The supplier does not guarantee the fulfillment of a contract that has been concludet on the marketplace and is not liable for defects in quality and in title of the offert service. The supplier has no duty to make sure that the contracts between the users will be fulfilled.
5.4All declarations of intent that were done after using the particular login of a user do affect for or against the user. This does not happen if the declaration recepient knows about the absence of the right to act for the user.
5.5No responsibility is taken for the correctness of the true identity and the user´s power of disposal. If there are any doubts the contracting parties have to inform themselves in an way about the true identity and the power of disposal of the other contracting party.
5.6The supplier reserves the right to change the content and the structure of the platform and to change or to expand the corresponding user interface if the fulfillment of the purpose is not or not considerably affected. The supplier will inform the user of the marketplace in conformity about the changes.
§ 6The users´ duties
6.1An announcement may not take place if
6.1.1specifications are so incomplete that matter and price can not be qualified;
6.1.2the announcement, the offer or the realization of the contract, according to the particular intented contract applicable legal system, would violate laws and regulations, licensing orders or contra bonos mores (inmoral contract). The supplier is authorized to eliminate such an announcement from the marketplace.
6.2Accommodations or services which can only be offered if there is a lawful certification, may only be offered or asked for on the marketplace if the exigence of the certification is named on the announcement and the service only takes place in exchange for the lawful exigenced certifcation.
§ 7The supplier´s liability
7.1The supplier is only liable unlimited for intent and gross negligence, for simple negligence only if contract essential duties or life, body or health have been violated. The liability for consequantal loss is limited to the amount of the conventionary payment in case of simple negligence, except the case that life, body and health have been injured.
7.2The supplier is not liable for failures intrasystem the grid-type network he is not to blame for.
7.3The supplier is only liable for the loss of data according to the aforesaid passages if such a loss had not been preventable by adequate measure of data saving on the part of the user.
7.4The liability does not extend to disturbances of the use according to contract of services which have been rendered on the marketplace and have been caused by the user because of an inappropriate or wrong usage.
7.5As far as there is an opportunity through the marketplace to transmit to a database, to websites, third party services etc., for example through setting links or hyperlinks the supplier is not liable either for accessibility, the continued existence or security nor for their content. Above all does the supplier not be liable for their legality, correctness in respect of intent, completeness and topicality.
7.6The supplier´s liability according to § 7 THK is limited in the following way: Does the supplier violate culpably the law of telecommunication or other executive order laws that have been legislated because of this law or official order of a regulatory authority for telecommunication and post and does the prescription or the obligation purpose the security of the ordering party the liability is limited to a financial loss of 12.500 €. The supplier´s liability towards all aggrieved parties is limited to 10 million Euros, for each damage causing event. If the compensations to which many people are entitled because of the same event exceed the rate ceiling, the compensation will be reduced proportional as the total of all entitlements of damages are proportional to the rate ceiling. The limitation of liability of the amount is not to apply if the damage has been caused intentionally.
7.7The asforsaid limitation of liability are basically applicable in favour of employees, representatives and auxilary persons of the supplier.
§ 8Outside contents, viruses
8.1The users are not allowed to put contents (for example by links or frames) on the marketplace which violate statutory provisions, official directives or morality. They are neither allowed to announce contents with which they impinge upon a third party right, in particular copyrights, industrial property rights, utility patents and design rights.
8.2TThe supplier does under no circumstances adopt foreign contents, unless to use the contents for own purposes according to § 10.7.
8.3The supplier reserves the right to block foreign contents if they are liable to prosecution because of applicable laws or if they shall obviously suit the purpose to prepare a criminal act.
8.4The user will indemnify the supplier from all claims which third parties assert against the supplier due to abusing their rights or violation of the law which were caused by setting the offerts and/or contents. In this regard the user has to bear the expenses of the supplier´s defence including all court costs and legal fees.
§ 9Other users´ duties
9.1The User is obligated,
9.1.1to arrange and to maintain the required data saving during the whole contract duration. This relates essentially to the careful and religiuosly handling of logins and passwords;
9.1.2to communicate the supplier immediately the technical changes in his area which can disturb the service provision or the supplier´s marketplace security.
9.1.3to participate in clarification when third parties attack the marketplace, as far as necessary.
9.2The user obligates himself to fail to do all measures which endanger or derange the function of the marketplace and not to access data to which access he is not entitled. He also has to exercise with all reasonable carefulness to care that his information he send through the marketplace and set data are not afflicted with any viruses, worms or Trojans. The user obligates himself to make up for the damages which were caused by ignoring these duties and furthermore to indemnify the supplier from all third party claims including the legal fees and the court costs, which they assert against the supplier because of ignoring these duties.
§ 10Data security and privacy policy
10.1The supplier´s server is secured according to the prior art, in particular by firewalls; but the user knows that there is a risk for all parties that on submitted data can be bugged in the transmission route. This does not only count for the exchange of information through e-mail which do leave the system but also for the integrate news system and all other kinds of data transmissions. For this reason the data confidentially for the data transmitted through the marketplace can not be guaranteed.
10.2The user agrees to the supplier´s right to retain information and data about the process of business transactions and the user´s and end customer´s behaviour during the transactions in an anonymous way and to use them only in this anonymous way for marketing functions, for example for creating statistics and presentations.
10.3The supplier is entitled to work on the users´ data which he got in connection with the business connection and to retain them during this contract runtime by considering the specifications of the replicable privacy terms. In detail does the user agree to that the supplier
10.3.1retains and works with the particulars the user gave him in connection with the admission application concerning company data, bill data, the user´s contact person and corresponding updates which the user communicated.
10.3.2retains the users´ data which he entered into the marketplace under independent administration in connection with the wished company´s representation in the retail sector and makes them available in the public and close area of the marketplace for other registered and not registered users;
10.3.3 retains the eventually during the transaction process used personal data and transmits them to other users and makes them available for registered and not registered users;
10.3.4retains non personal data concerning the transaction content and transmits them to other users and makes them available for registered and not registered users.
10.4Over and above the mentioned use other use of personal data requires the user´s separate agreement. The user is authorized to cancel his agreement he gave according to § 9.3 anytime as far as he agreed hereby to the use of the personal data.
10.4.1The supplier will by the way handle confidentially all data which concern the user and were marked by him as confidential and only use them in line with these terms of use. The supplier reserves the right to diverge therefrom if he has to releave the user´s data because of legal or official directives.
10.4.2With the admission according to § 3.2 does the user guarantee the supplier and all other users that concerning the data which were transferred the exigence of the data privacy has been followed by the user and indemnifies the supplier from all kind off claims, even those concerning public law.
10.4.3 With the admission according to § 3.2 the user grants the supplier the right to use the contents the user set on the page, particularly pictures and graphics on an other place of the marketplace for his own function. This right is not exclusively, not temporary, negotiable and in the content unlimited.
§ 11 Assignment and setoff
11.1A partly or total subrogation of the users´rights from the contract with the supplier to a third party is impossible.
11.2The user is only entitled to setoff against the supplier with undoupted or legally binding counter claims.
§ 12Contract duration
12.1As far as the offer which underlies the contract does not arise something different will the contract that underlies the terms of condition be concluded for a duration of 12 months. It begins with the admission by the supplier according to § 3.
12.2The contract will be renewed for 12 months if it has not been terminate before under observance of one month period of notice. The right to the extraordinary notice according to § 12.3 remains unaffected.
12.3 Each party has the right to terminate the agreement without observing the period of notice for an important reason. An important reason for the supplier is in particular:
12.3.1the offence of the regulations of the terms and conditions by the user, which has not even after a deadline been eliminated.
12.3.2 the user´s act of tort or the attempt, for example fraud.
12.3.3default payment over more than 6 weeks for the user´s duty of payment according to 3.2. and 3.3
12.3.4constant operational disturbances as result of God act which is out of control of the supplier, like for example natural disaster, fire, independent of negligence breakdown of the mains.
12.4 In case of a from the supplier expresses the cancellation he is entitled to demand an amount of 75 % from the sum of all hires, which the user had to pay during the contract duration and simultaneous cancellation if the user does not proof that the supplier did not suffer any damages or the real damage is essentially lower than this amount.
12.5 Terminations of agreement must be in written form.
§ 13Applicable law, jurisdiction, severability clause
13.1The law of the Federal Republic of Germany is applicable to the exclusion of UN-Convention of Contracts for the International Sale of Goods - CISG.
13.2 Jurisdiction for all legal disputes is Offenbach am Main. The supplier is also authorized to file a suit at the user´s natural forum.
13.3 If there are or become several regulations of these terms of use invalid and/or they are not compatible to the legal arrangements the rest of them remains hereby valid. The invalid clause will be replaced amicably by the parties to the contract through a clause which comes nearest to the economic purpose of the unvalid clause in an operative way. The asforsaid regulation also is accordantly applicable to loopholes.
 Created by the legal practitioner Dr. Tim Becker, lindemannpartner.de

 

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